Criminal Court Orders under Part III of the Mental Health Act 1983
| Author | Michael Butler |
| Pages | 95-108 |
Part Four
Criminal Admissions under the Mental Health Act 1983
Chapter 10
Criminal Court Orders under Part III of the Mental Health Act 1983
10.1 INTRODUCTION
The alternative to a hospital admission under the civil provisions in Part II of the MHA 1983 is an admission from the criminal justice system. Part III applies. It sets out the powers available to criminal courts to order detention in hospital for assessment or treatment, and to the SSJ to order transfer from prison to hospital for similar reasons.
The range of orders that a criminal court may make in respect of a mentally disordered offender, or suspected offender, is considered in this chapter. There is particular emphasis on the most common, a hospital order under section 37 of the MHA 1983, but the chapter summarises all powers available to magistrates and the Crown Court in respect of all defendants, whether sentenced or not. The powers of transfer available to the SSJ are considered in Chapter 12.
Two particular types of sentence, a restriction order under section 41 of the MHA 1983 and a hospital direction under section 45A, are considered separately, in Chapters 11 and 13, respectively.
10.2 HOSPITAL ORDERS UNDER SECTION 37 OF THE MENTAL HEALTH ACT 1983
Section 37 of the MHA 1983 provides the Crown Court and magistrates with the power to order that a defendant is sent to hospital for treatment for mental disorder. The power is available in either court as a sentence following conviction (see para 10.2.1) and, in the magistrates’ court, when mental disorder means that the defendant is too unwell to plead (see para 10.2.6). The effect of the order is that, in most respects, the defendant is treated as though subject to section 3 from the moment he begins his sentence.
98 A Practitioner’s Guide to Mental Health Law
10.2.1 Offences punishable by imprisonment
Subject to the relevant criteria being met (see para 10.2.2), the magistrates’ court and Crown Court may impose a hospital order on any person convicted of any offence punishable with imprisonment, except murder (section 37(1)).
10.2.2 Criteria
Before a court makes the order, section 37(2)(a)(i) of the MHA 1983 requires it to be satisfied that:
• the offender is suffering from a mental disorder of a nature or degree which makes it appropriate for him to be detained in hospital for medical treatment; and
• appropriate medical treatment is available for him.
These criteria are, of course, similar to the criteria in section 3 of the MHA 1983, but section 37 does not require treatment to be ‘necessary’. It is enough that the offender has committed a criminal act and is suffering from a mental disorder of a nature or degree which makes treatment ‘appropriate’.
The requirement is that the offender ‘is suffering’ from a mental disorder. What is relevant, therefore, is his mental state at the time of sentence, not at the time of the offence. It follows that a link between mental illness and the offence itself ‘is not a pre-condition for the making of a hospital order’ (Keene LJ in R v Smith [2001] EWCA Crim 743). As with civil admissions, the words ‘is suffering’ do not mean that the offender must be symptomatic.
10.2.3 Most suitable method of disposal of the case
That the criteria are met does not mean that a hospital order must be imposed. A court has a discretion and must be of the opinion (section 37(2)(b)):
(b) … having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section.
The first issue will be whether the case is serious enough for a hospital order. Although not a punishment, a hospital order is a form of detention and should only be used, therefore, as an alternative to another form of detention. A case is not serious enough for a hospital order if it is not otherwise serious enough for a custodial sentence (R v Birch (1989) 11 Cr App R (S) 202).
Assuming the case to be serious enough, a court may have little difficulty in concluding that a hospital order is the most suitable method of disposing of the case, where, perhaps, the link between the offence and the mental disorder is very strong, and/or where the evidence suggests that the risk of further offending is best addressed by treatment for the disorder in hospital. However, there is no presumption in favour of hospital and no reason in principle why a mentally disordered offender should not go to prison. In R v Drew [2003] UKHL 25, for example, Lord Bingham confirmed that, ‘it cannot, as a matter of national law, be stigmatised as wrong in principle to pass a sentence of imprisonment on a mentally disordered defendant who is criminally responsible and fit to be tried’.
In R v Birch (1989) 11 Cr App R (S) 202, Mustill LJ suggested that there are two particular (separate) reasons why prison may be preferred to hospital. Firstly, the offender is ‘dangerous and no suitable secure hospital is available’. Secondly, there is ‘an element of culpability in the offence which merits punishment’.
Dangerousness
The offender’s dangerousness ought not to be a reason for the imposition of a prison sentence without the court having first considered its power under section 41 of the MHA 1983 to impose a restriction order to accompany a hospital order (see Chapter 11). The restriction order may be imposed when there is a risk of serious harm to the public from a mentally disordered offender. The consequences for the offender are significant (see para 11.6). He is...
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